Seven former OLC members, including Walter Dellinger and Marty Lederman have jointly authored, Untangling the Debate on Signing Statements. It’s a great explanation of the issues and why the Bush position on them is so troubling, and I’m in very substantial agreement with it.
Like the authors, I don’t for a second dispute the right, indeed duty, of the President to instruct the members of the executive branch in how to do their jobs — absent contrary congressional commands anyway. And Presidents have the right to say whatever they want when signing legislation. Like the authors, I don’t think this has much relevance to what a court should do if asked to decide the constitutionality of the statute. It’s certainly not on a par with legislative history — really nothing more than an argument in a brief. But there’s no harm in that.
And I accept that modern practice has for many years accepted that Presidents can sign a bill that they believe contains an unconstitutional provision then seek to have that part severed from the bill via court action — although the purist in me would prefer that the President veto the whole thing on constitutional grounds: Judicial severing of parts of legislation is not a particularly principled process and seems to be one that, for all its pragmatic short-run virtues, in the long run we might well be better-off without.
It’s no small matter when a President fails to execute or observe a statute — although constitutional grounds and subsequent court approval have in rare cases justified this stance. And the problem is more than doubled when — as is the case with the current administration — a President fails to observe the law in a manner which is designed to hide the ball, rather than make clear to the public and the courts that the President believes there’s a serious constitutional problem. It’s not ironic but deadly serious that this administration considers the statute requiring it to report when it fails to observe a law to be one of the many laws it doesn’t actually have to follow.
The other problem, of course, is that this administration has abused the ‘constitutional objection’ card beyond all credibility. Claiming that there are hundreds of bills that require executive correction betrays a worldview which says the President is a king, with fully and plenary powers not subject to legislative constraint and indeed has more-than-royal power to rewrite legislation at will.
A healthy democracy would have antibodies to this sort of thing. Ours seem very slow to swing into action. A big chunk of the blame lies in Congress, which has taken so much of this lying down for so long. And to be fair, part of it lies with the American people who voted this crew back into office in 2004. I hope 2006 will be a different story.